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Belgium / Council of State / 240.621

Non-identified foreign citizen v. The Belgian State

Policy area:
Justice, freedom and security
Deciding Body type:
National Court/Tribunal
Deciding Body:
Council of State
Type:
Decision
Decision date:
30/01/2018

Key facts of the case

In June 2013, the plaintiff entered the country of Belgium. He submitted a request for asylum on 25 April 2014. On 19 November 2014, the State Secretary for Asylum and Migration denied the request and issued an order to leave the territory of Belgium. In response, the plaintiff submitted a request for suspension of the order to the Council for Alien Law Litigation (Raad voor Vreemdelingenbetwistingen / Conseil du Contentieux des Etrangers), while also submitting an action for annulment. On 30 July 2015, the Council annuls the order to leave the territory of Belgium, yet it dismisses the appeal on the request for asylum.

The plaintiff was of the opinion that the Council for Alien Law Litigation did not respect his right to be heard and that this could potentially lead to a different outcome of the decision. Therefore, he appealed in cassation (the highest and final legal remedy under Belgian law) to the Council of State.

Key legal question raised by the Cour

The legal question formulated by the Council of State was the following:

“ Does the violation of the rights of defence under Union law, specifically the right to be heard, always lead to annulment of the administrative decision”.

Outcome of the case

The Council of State rejected the appeal of the plaintiff. In its argumentation, the Council follows the argumentation of the Court of Justice of the European Union, that states in its judgement of 10 September 2013 (C-383/13) that a violation of the rights of defence can only lead to annulment if the procedure would have a potentially different outcome without the violation. The Court of Justice of the European Union further states that not all irregularities of the rights of defence during an administrative procedure will lead to a violation of these rights. Thus, not all infringements of the right to be heard will automatically lead to the annulment of the decision. It is the task of the national judge to ascertain, on a case by case basis, whether the irregularity that infringes upon an aspect of the right of defence would lead to a different outcome if the irregularity had not taken place.

The Council of State analyses the decision made by the Council for Alien Law Litigation and concludes from the presented motivation that the plaintiff can not appropriately claim not having been heard during the proceedings. Furthermore, the interviews conducted by the Council for Alien Law Litigation, on 8 May 2014 and 6 June 2014, allowed it to investigate all specific factual and legal circumstances of the situation. The fact that the interviews are not mentioned in the contested decision is not an issue since it referts to the application procedure of the plaintiff and the statements made by him.

Thus, the Council for Alien Law Litigation did not infringe upon the the substance of the right to be heard and the Council of State, in its competence as a cassation court, can not judge itself if the elements provided by the plaintiff, would lead to a different administrative decision.